FEDERAL COURT OF AUSTRALIA
Booth v Kadir Kaya [2020] FCA 764
File number: VID 298 of 2020 Judge: WHITE J Date of judgment: 28 May 2020 Catchwords: CRIMINAL LAW - application for the making of an Interim Control Order pursuant to s 104.4 of the Criminal Code Act 1995 (Cth) – whether the person has been committed in Australia of an offence relating to terrorism, a terrorist organisation, or a terrorist act – whether the obligations, prohibitions and restrictions are reasonably necessary and reasonably appropriate and adapted – application granted. Legislation: Crimes Act 1914 (Cth) s 3
Criminal Code Act 1995 (Cth) ss 11.2A, 119.4(1), 104.1, 104.3, 104.4, 104.5
Date of hearing: 28 May 2020 Registry: Victoria Division: General Division National Practice Area: Federal Crime and Related Proceedings Category: Catchwords Number of paragraphs: 17 Counsel for the Applicant: Ms C Fitzgerald Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr D Hallowes SC and Ms F Todd Solicitor for the Respondent: Galbally & O’Bryan Lawyers ORDERS
VID 298 of 2020 BETWEEN: SANDRA BOOTH
Applicant
AND: KADIR KAYA
Respondent
JUDGE:
WHITE J
DATE OF ORDER:
28 MAY 2020
Endorsement pursuant to r 41.06 of the Federal Court Rules 2011 (Cth)
To: Kadir Kaya
You may be liable to imprisonment, sequestration of property or punishment for contempt if:
(a)for an order that requires you to do an act or thing - you neglect or refuse to do the act or thing within the time specified in the order; or
(b) for an order that requires you not to do an act or thing - you disobey the order.
THE COURT NOTES THAT:
1.It is satisfied on the balance of probabilities that the Respondent has been convicted in Australia of an offence relating to terrorism, namely, the offence of preparing for incursion into a foreign country for the purpose of engaging in hostile activities, in contravention of ss 11.29 and 119.4(1) of the Criminal Code in the Schedule to the Criminal Code Act 1995 (Cth).
2.It is satisfied on the balance of probabilities that the Respondent has provided support for or has otherwise facilitated the engagement in a hostile activity in a foreign country.
3.It is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the Respondent by the order is reasonably necessary, and reasonably appropriate and adapted, for the purposes of:
a.protecting the public from a terrorist act;
b. preventing the provision of support for or the facilitation of a terrorist act; and
c.preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.
4.The Order is directed to the Respondent, Kadir Kaya.
THE COURT ORDERS THAT:
1.The obligations, prohibitions and restrictions imposed on the Respondent by this Interim Control Order (ICO) are those set out in Schedule 1 to this order.
2.A summary of the grounds on which the order is made is set out in Schedule 2 to the…
Continue reading Booth v Kadir Kaya
Sign in free to access the full text
Details
- AGLC
- Booth v Kadir Kaya [2020] FCA 764
- Case
- [2020] FCA 764
- Decision Date
CaseChat Overview and Summary
In the case of Booth v Kadir Kaya, the respondent, Kadir Kaya, applied for the making of an Interim Control Order under section 104.4 of the Criminal Code Act 1995 (Cth). The application arose from concerns that Mr Kaya posed a risk of committing, supporting, or facilitating a terrorist act in Australia or overseas. The primary legal issue the court needed to address was whether Mr Kaya had been convicted of an offence related to terrorism, a terrorist organisation, or a terrorist act, and if the proposed obligations, prohibitions, and restrictions in the application were reasonably necessary, reasonably appropriate, and adapted.
The court examined the evidence presented regarding Mr Kaya's past offending and extremist ideology, including his attempts to travel to the Southern Philippines with the intention of supporting hostile activities, his sophisticated methods of avoiding detection, and his expressed support for Islamic State and violent extremist ideology. The court also considered Mr Kaya's behaviour in custody, including indications of a continued display of extremist ideology and his association with individuals of security concern. The court found that Mr Kaya's actions and beliefs demonstrated a significant ongoing risk of engaging in terrorist activities, thus justifying the application of an Interim Control Order.
Upon finding that Mr Kaya had indeed been involved in activities related to terrorism and that the proposed conditions were appropriate measures to mitigate the risk he posed, the court granted the application for the making of the Interim Control Order. The order was designed to impose specific obligations, prohibitions, and restrictions on Mr Kaya, aimed at preventing him from engaging in further terrorist activities. The court's decision underscores the necessity of such measures in addressing the threat posed by individuals who exhibit extremist tendencies and have a history of involvement in terrorist-related activities.
The court examined the evidence presented regarding Mr Kaya's past offending and extremist ideology, including his attempts to travel to the Southern Philippines with the intention of supporting hostile activities, his sophisticated methods of avoiding detection, and his expressed support for Islamic State and violent extremist ideology. The court also considered Mr Kaya's behaviour in custody, including indications of a continued display of extremist ideology and his association with individuals of security concern. The court found that Mr Kaya's actions and beliefs demonstrated a significant ongoing risk of engaging in terrorist activities, thus justifying the application of an Interim Control Order.
Upon finding that Mr Kaya had indeed been involved in activities related to terrorism and that the proposed conditions were appropriate measures to mitigate the risk he posed, the court granted the application for the making of the Interim Control Order. The order was designed to impose specific obligations, prohibitions, and restrictions on Mr Kaya, aimed at preventing him from engaging in further terrorist activities. The court's decision underscores the necessity of such measures in addressing the threat posed by individuals who exhibit extremist tendencies and have a history of involvement in terrorist-related activities.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
By reason of the following matters, Mr Kaya presents an ongoing risk of committing, supporting or facilitating a terrorist act in Australia or overseas; or committing, supporting or facilitating engagement in a hostile activity in a foreign country: 3.1the nature and circumstances of, and background to, Mr Kaya’s offending and the extreme ideology that he held at that time, including:3.1.1his attempt (by agreement with his co-offenders) to travel to the Southern Philippines (where a number of Islamist militant groups operated) with the intention of his co-offender Mr Cerantonio engaging in hostile activity, despite the Minister’s refusal to re-issue his passport on 25 February 2015;3.1.2his security awareness, demonstrated during the course of the investigation;3.1.3demonstrated support for Islamic State and extremist ideology supportive of violence; and3.1.4his susceptibility to others who espouse extremist ideology as demonstrated by his susceptibility to the influence of Mr Robert Cerantonio; 3.2 His behaviour whilst and in custody, including: 3.2.1 Some indications of a display of extremist ideology; 3.2.2Continued association with persons of security concern in view of his susceptibility to influence.Nature and circumstances of, and background to, his offending The nature and circumstances surrounding Mr Kaya’s offending included: 4.1Persistent attempts to travel offshore: 4.1.1.On 21 September 2015, after the Minister for Foreign Affairs refused to re-issue Mr Kaya's Australian Passport, Mr Kaya, having booked a one-way flight to Turkey, attempted to travel out of Australia from Melbourne International Airport using his Turkish passport. He was prevented from doing so because Australian Border Force officers impounded his Turkish passport pursuant to a direction of the Minister for Foreign Affairs ordering the surrender of his foreign passport.[3]. [3]SOF [43].4.1.2.Following his being prevented from leaving Australia by plane, he entered into an agreement with his co-offenders to acquire a boat and other equipment in preparation for leaving Australia to enter the Southern Philippines for the purpose of his co-offender Mr Cerantonio engaging in hostile activity.4.1.3.On 8 May 2016, Mr Kaya applied for and received a $500 advance payment of his Newstart allowance.[4] It can be inferred that he did so in anticipation of leaving Australia.[4]SOF [84].4.1.4.Mr Kaya intended to travel offshore with his family and co-offenders in the MV Rushcutter if it had been assessed as suitable for purchase by his co-offenders Mr Murat Kaya and Mr Dacre.4.1.5.On 25 February 2016 Mr Kaya met with the co-offenders following Mr Murat Kaya and Mr Dacre’s return from Darwin, where they had travelled for the purposes of purchasing a boat to travel to the Philippines (although they did not purchase that particular boat).[5] [5]SOF [73].4.1.6.Between 6 May 2016 and 10 May 2016, Mr Kaya travelled with his co-offenders (other than Mr Murat Kaya) to Cape York in Queensland with a boat purchased in the name of Mr Dacre with the intention of travelling out of Australia to the Philippines.[6] He was subsequently arrested on 10 May 2016.[7] [6]SOF [86].[7]SOF [87].4.2 Security awareness4.2.1Mr Kaya behaved consistently with the avoidance of detection by law enforcement during the period of offending, in that he:a.used a system of codes with his co-offenders to mislead any attempts at electronic surveillance of their communications;[8][8]SOF [63] – [64].b.used guarded or deliberately obfuscating language to refer to his plan to leave the country in telephone calls referring to it as “the thing” that he was planning being “on its way”.[9][9]SOF [24] – [25].c.whilst being interviewed by Dr Doroc he reported being aware their phones were likely tapped and for this reason they only had minimal conversations about the plan to leave.[10][10]Annexure B to the SOFN - , ‘Violent Extremism Assessment and Recommendations Report’ dated 3 April 2019, page 6.4.3 Demonstrated support for Islamic State and extremist ideology:4.3.1Islamic State follows an extreme interpretation of Islam which is anti-Western, promotes sectarian violence and targets those that do not agree with its extreme interpretations. Islamic State has a goal of ‘global jihad’ and has exhorted followers to kill disbelievers. Islamic State inspires, encourages, enables and directs terrorist attacks internationally.[11] [11]SOF [13] – [14].4.3.2On 17 July 2015, Mr Kaya and his co-offenders attended an organised meeting at Footscray Park, at which ISIS flags were flown by the co-offenders, and they each raised their index fingers (sometimes known as the ‘shahada finger’) in the ‘tawheed salute’ which has come to be used as a widely recognized symbol of support for Islamic State.[12][12]SOF [29] – [33].4.3.3On 25 August 2015, Mr Kaya commented on a post by Mr Thorne on Telegram chat group ‘Al Ghurabaa” which linked to an article about Sheikh Nassir Al-Fahad pledging allegiance to ISIS, with apparent endorsement of the Sheikh’s actions. Mr Kaya posted ‘What a gun he has courage to do that’.[13][13]SOF [34] – [35].4.3.4On 15 October 2015, in his interview with Neil Mitchell from radio station 3AW, Mr Kaya indicated that he hated Australia and did not respect Australian foreign policy or other Australian values. Mr Kaya denied that he would fight for ISIS if he was permitted to travel to Turkey, however he was at a loss to explain why he would join the Turkish military, who were fighting ISIS, whilst rejecting the Australian government’s position on fighting against ISIS.[14][14]SOF [47] - [50].4.3.5On 10 April 2016 Mr Kaya responded in a manner suggesting endorsement of a post by Mr Dacre on Telegram chat group Al Ghuraba. Mr Dacre’s post related to a violent incident in which a prison inmate carved an Islamic State inspired message into his cell mate’s forehead. Mr Dacre posted ‘Did you hear about the brother in jail who bashed an ex soldier’. And ‘In Sydney, 18 year old 'Isis supporter' went into a prison cell of an ex digger and smashed him so hard he's in an induced coma…. He inscribed E4E on his forehead. I assume this means eye for an eye.’ Mr Kaya responds ‘Allahu akbar’. The phrase ‘allahu akbar’ means ‘god is the greatest’.[15][15]SOF [40] – [42].4.3.6Mr Kaya was sentenced by Justice Croucher on the basis that he adhered to an ideology of Islamic extremism and was supportive of Islamic State and that this motivated his criminal offending.[16][16]Annexure A to the SOF - Sentencing Remarks of HH Justice Croucher dated 3 May 2019 at [99].4.4 Susceptibility to the influence of Mr Cerantonio: 4.4.1From at least 22 October 2015, Mr Kaya was closely associated with Mr Cerantonio whom he looked to for religious guidance and leadership. Mr Cerantonio was the person to whom Mr Kaya and his co-offenders turned for leadership and religious and spiritual guidance. He enhanced or persuaded Mr Kaya towards extremist ideas. Mr Certanonio advocated support for the establishment of an Islamic State under Sharia law in the Southern Philippines and Mr Kaya was found by Justice Croucher to have supported Mr Cerantonio’s advocacy for that result.[17][17]SOF [18]. R v Cerantonio [2019] VSC 284 at [19].Behaviour whilst in custodyContinued display of extremist ideology
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.